Pratley v Ireland

Supreme Court of NSW|2013-02-13|Before: Young J

Judgment 1HIS HONOUR. This is an application under the Property (Relationships) Act 1984 brought by the plaintiff against the first defendant. The parties were in an admitted de facto relationship between about August 2003 and 1 January 2009. The plaintiff and the first defendant had one child, Jack, who was born in October 2007. 2The second and third defendants in the proceedings are the aunt and uncle of the first defendant. They have been joined because after the conclusion of the relationship, the first defendant purchased a property which was financed by the second and third defendants as trustees of a discretionary trust to which the first defendant had made a gift of $479,000.

Legal principles 20The factors which the Court must consider are set out in s 20 of the Property Relationship Act as discussed by Basten JA in Baker v Towle [2008] NSWCA 73: "[43] It has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilson [2005] NSWCA 149 (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms at [25]: (1) identification and valuation of the property of the parties;(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;(3) determination of what if any order is just and equitable having regard to these contributions. [44] What questions arise will, of course, depend to some extent on the circumstances of the individual case. For example, in some cases there will be an antecedent question as to whether the applicant is a party to a 'domestic relationship' as defined in s 5 of the Act: see, eg, Delany v Burgess [2007] NSWCA 360. Otherwise, each of the three steps referred to above may require some further elucidation."

Property of the parties 21At the commencement of the relationship the parties each had the following property: Asset Value Plaintiff First defendant Rankin Drive Bangalow $260,000 $260,000 Hill Street Bermagui $177,000 $177,000 Savings $40,000 $38,000 $2,000 Toyota Corolla Seca $10,000 $10,000 Holden utility $25,000 $25,000 Total $512,000 $308,000 $204,000 Less liabilities: Mortgage $371,300 $212,000 $159,300 Car lease $21,000 $21,000 Total $392,300 $212,000 $180,300 Net position $119,700 $96,000 $23,700 Superannuation $15,244 $15,000 $244

22By the time of separation there had of course been the deed executed by the parties and although the title still remained in the name of the plaintiff, the ownership of the property as a result of the execution of the deed needs to be determined. Although the deed does not have full force and effect under the Property Relationships Act the provisions of s 47 of the Act should be noted: "47 Effect of agreements in certain proceedings (1) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied: (a) that there is a domestic relationship agreement or termination agreement between the parties to the relationship, (b) that the agreement is in writing, (c) that the agreement is signed by the party against whom it is sought to be enforced, (d) that each party to the relationship was, before the time at which the agreement was signed by him or her, as the case may be, furnished with a certificate in or to the effect of the prescribed form by a solicitor which states that, before that time, the solicitor provided legal advice to that party, independently of the other party to the relationship, as to the following matters: (i) the effect of the agreement on the rights of the parties to apply for an order under Part 3, and (ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement, and (e) that the certificates referred to in paragraph (d) are endorsed on or annexed to or otherwise accompany the agreement, the court shall not, except as provided by sections 49 and 50, make an order under Part 3 in so far as the order would be inconsistent with the terms of the agreement. (2) Where, on an application by a party to a domestic relationship for an order under Part 3, a court is satisfied that there is a domestic relationship agreement or termination agreement between the parties to the relationship, but the court is not satisfied as to any one or more of the matters referred to in subsection (1) (b), (c), (d) or (e), the court may make such order as it could have made if there were no domestic relationship agreement or termination agreement between the parties, but in making its order, the court, in addition to the matters to which it is required to have regard under Part 3, may have regard to the terms of the domestic relationship agreement or termination agreement. (3) A court may make an order referred to in subsection (2) notwithstanding that the domestic relationship agreement or termination agreement purports to exclude the jurisdiction of the court to make that order." 23It can be seen from s 47(2) that I can have regard to the terms of the agreement. In her oral evidence the plaintiff sought to distance herself from the agreement by suggesting that she thought that the arrangement was merely a discharge of the mortgage but not a transfer of title. Given her clear and admitted execution of the document, I do not accept her explanation of what she thought was the nature of the transaction. This was said to be supported by a concession to this effect in a letter dated 5 February 2010 from the plaintiff's solicitor to the first defendant. However a reading of the letter does not support a clear admission. 24The defendant submitted that under Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 the plaintiff would hold one half of the property on resulting trust for the first defendant. This case is not applicable to the facts of the present case as the deed was after the purchase. The correct way to approach the question of ownership is to see what the parties agreed to for the payment of the money. In my view, having regard to the clear terms of that deed which could not have been misunderstood, the property at Bangalow was thereafter held beneficially by the plaintiff and the first defendant in equal shares. 25Accordingly the property held at separation was the following Assets Value Plaintiff First defendant Rankin Drive Bangalow $465,000 $232,500 $232,500 Hill Street Bermagui $242,000 $242,000 Savings $139,054 $85,000 $54,054 Holden Vehicle $21,000 $21,000 Total $867,054 $317,500 $546,554 Liabilities nil Superannuation $0,000 $514,120

26By the time of the hearing, the defendant had changed his residence and the parties' property at the time of the hearing was as follows: Asset Value Plaintiff First defendant Rankin Drive Bangalow $610,000 $305,000 $305,000 Peter Street South Golden Beach $495,000 $495,000 Savings $80,000 $80,000 Furniture & household effects $61,000 $5,000 $56,000 Motor vehicle $31,000 $31,000 Total $1,277,000 $390,000 $887,000 Liabilities: Loan from Trust $479,000 $479,000 Other loans $82,000 $82,000 Credit cards $20,000 $ $20,000 Total liabilities $581,000 $ $581,000 Net position $696,000 $390,000 $306,000 Superannuation $154,794 $514,120

I note that the defendant's assets have been reduced because of the gift by him to the trust.

Financial contributions 27It should firstly be noted that in respect of the Bermagui property which was held by the defendant during the whole of the relationship, he was the one who made the repayments on the mortgage from his own resources and funds received by him. The real contributions in a financial sense by the parties were centred around the Bangalow property which was first owned by the plaintiff and then owned by the two of them equally after the separation deed. 28In my view it is clear that by the time of the separation deed the parties had contributed to the Bangalow property in equal shares. The next matter that has to be considered is the effect of the second round of renovations. Earlier I had mentioned that the parties had hoped to do the renovations in the second round for $60,000. Each of them contributed one half of this amount. It seems clear on the evidence that the amount actually paid to the builder for the second stage of the renovations was a sum of $138,522.78. There was also left over unpaid from the stage one renovations, $5,497.62. The total of this is $144,020.40. Taking one half of this and subtracting the $30,000 paid by the plaintiff, one is left with the defendant having contributed $42,010.20 more than the plaintiff. 29It is perfectly plain from the evidence that the first defendant did not ask the plaintiff to pay this amount during the course of the relationship as she had determined in her mind that they should not spend more than $60,000 on the property. This poses a problem because one has the obligation to have regard to the contributions which each party makes to the relationship in a financial sense. However, although the plaintiff did not agree to the contributions, I think I should have regard to them particularly as they resulted in an improvement in the nature of the property which they occupied. As is often the case, the improvements may not have had a substantial effect on value but they certainly made the property liveable for the family. 30Another important contribution in a financial sense were the wages each party earned during the period of the relationship. As I have mentioned, the plaintiff was employed by the Master Builders Association and the defendant after his accident, which was only a few weeks after the commencement of the relationship, continued to receive workers compensation at the rate of his previous wages. The actual contributions in this sense by the parties are as follows: Taxable Income up until separation Financial Year Plaintiff Defendant 2002/2003 $99,866 $58,225 2003/2004 $94,201 $73,948 2004/2005 $100,058 $78,200 2005/2006 $106,447 $74,863 2006/2007 $119,008 $83,931 2007/2008 $77,326 $35,933 Dec-2008 $48,199 Total $645,105 $405,100

The evidence does not include the defendant's income in the second half of 2008 but it is like to be in the order of $18,000. 31Of these figures, they include in the years 2003 to 2006 the rent which the plaintiff received on the Bangalow premises while they were living in rented accommodation prior to occupying the property. The expenses of the property normally exceeded the income and a table setting out the differences is as follows: Rent Expenses 2003 $12,035 $18,466 2004 $15,414 $19,650 2005 $15,021 $19,641 2006 $14,032 $20,207 Total $56,502 $77,964

32It appears there is a substantial difference in the contributions by the plaintiff and the first defendant in respect of their salaries and income. 33As I have mentioned above, the first defendant on 28 February 2008 received from Cbus his industry superannuation fund, a payment in respect of his superannuation and disablement. The superannuation component was $30,364.79 and the amount for total and permanent and disablement insurance was $17,500. In May 2008, he received the sum of $470,234 from the BT Financial Group. Of this amount, $436,500 was for total and permanent disablement and the balance was the payment of superannuation. 34The total of the superannuation payments was $64,098.79. For many years the only case which gave guidance on the matter of superannuation was Green v Robinson (1995) 36 NSWLR 96. Although there is some dispute about what the majority said one view seems to be that comments of Powell JA and Cole JA were that there had to be demonstrated some factual matter which would enable one to form a view that there had been a contribution to a spouse's superannuation entitlement. The matter was dealt with recently by the Court of Appeal in Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360. Bryson JA dealt with the matter at paragraphs 82 to 90 and his views were adopted by Hunt AJA and substantially agreed with by Hodgson JA. The views of the Powell JA and Cole JA were rejected and the approach of Kirby P who had dissented was adopted. Accordingly, superannuation entitlements are not to be viewed as belonging to the parties separately but as financial resources of the parties which need to be adjusted having regard to contributions "made directly or indirectly" by them. Normally the court will take a global view of the matter. 35I note that at the time of separation the plaintiff still retains superannuation entitlements of $90,000 which no doubt she cannot access at the moment. This has to be considered, with the amount of the defendant's superannuation payments which he has received, in the overall approach to the adjustment process which I will do later. 36The sums which the first defendant received in respect of total and permanent disablement prior to separation were used by him to acquire his half share in the Bangalow property and payout his mortgage on the Bermagui property amongst other things. 37After separation the first defendant received a sum of $676,768.44 in respect of the settlement of his common-law claim. There are a number of cases which deal with the way in which awards of damages are to be considered although many of them are cases where the amount was received during the course of the relationship. The defendant in his submissions referred to them in these terms: "In Wagstaff v Wagstaff [1992] 1 FLR 333, Butler-Sloss LJ treated the husband's award for damages as part of the asset pool of the parties and then considered the contributions made by the wife to the award. At pp 337-8 her Ladyship said: '... the capital sum awarded is not sacrosanct, nor any part of it secured against the application of the other spouse. There may be instances where the sum awarded was small, and was specifically for pain and suffering, in which it would be unsuitable to order any of it to be paid to the other spouse. In some cases, the needs of the disabled spouse may absorb all the available capital, such as the requirement of residential accommodation ... In general, the reasons for the availability of the capital by way of damages must temper the extent of and in some instances may exclude the sharing of such capital with the other spouse. It is important to stress yet again that each case must be considered on its own facts.' This observation by her Ladyship accords with the observation of Justice Kay in Aleksovski v Aleksovski (1996) FLC 92-705 (at p 83,443) who was of the opinion that with damages for pain and suffering, the other s 79 Family Law Act 1975 considerations required to alter the ownership of that fund need to be all the more powerful before it could be said to be just and equitable and proper to make such an order. It was held by Baker and Rowlands JJ in Aleksovski v Aleksovski (1996) FLC 92-705 at p 83,437, that "a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury". See also Wrona and Wrona [2004] FamCA 1280; (2004) FLC 93-207, per Finn J. The previously quoted extract from Kostov v Kuslev [2008] FMCA Fam 757, per Brewster FM at para 18, in the Summary of Argument of the First Defendant dated 6 February 2013, is also apposite. Justice Kay in Aleksovski v Aleksovski (1996) FLC 92-705 (at p 83,443) observed also: 'It was submitted by counsel for the wife and conceded by counsel for the husband that there was a peculiarly personal element to the wife's contribution because much of her money was compensation for her pain and suffering. This was an important matter for his Honour to consider but it had to be properly weighed together with the other significant factors in this case and ought not have been overwhelmingly decisive. As the High Court said in Williams v Williams (1985) FLC 91-628 at 80,093 "... when the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what orders should be made under s 79 of the Family Law Act 1975 (Cth)."'" 38It seems that the award of damages was substantially in respect of the loss of future income. Evidence was given by Mr Chipchase, the solicitor who handled the matter, and his view was that the bulk of the settlement represented future loss of earnings. This was because the settlement did not include workers compensation payments which had already been made to the first defendant between the date of the accident and the date of the final settlement. It included no amount for compensation for pain and suffering or medical treatment expenses or care assistance. 39In these circumstances it seems to me that these post separation payments should not be taken into account although they are reflected in the assets as at the date of hearing. 40There was in submissions made by the plaintiff an attack upon the first defendant suggesting that he had not fully disclosed to the Court his financial position. It is of course important to do so. The Family Court of Australia has consistently held that there is a clear obligation as a party to proceedings in that court to make a full and frank disclosure of all relevant financial circumstances. See Oriolo v Oriolo [1985] FLC 91-653, In Marriage of Briese [1986] FLC 91-713 at 75,181 and Stein v Stein [1986] FLC 91-779 at 75,676-7. The court has adopted what was said by Lord Brandon for the House of Lords in Livesey v Jenkins [1984] UKHL 3; (1985) AC 424 at 437: "I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred." 41These comments are appropriate to these proceedings under the Property Relationships Act. A similar approach has been adopted in Family Provision Act 1982 cases. See Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported). 42The plaintiff's submissions were to the following effect: "Between June 2007 and mid 2010 the defendant received the following amounts: June 2007 Inheritance 103,378.90 Feb 2008 Cbus 43,886.79 May 2008 BT 470,234.85 Dec 2009 Settlement 549,140.04 April 2010 Costs 38,251.12 May 2010 Costs 89,377.28 July 2010 Bermagui sale 216,684.10 July 2010 Deposit 15,000.00 Total 1,525,953.89 Whilst the plaintiff accepts the defendant ought not be expected or obliged to account for how he spent the money to the last cent, he carries an onus to account for it. The plaintiff submits that the defendant's evidence at its highest is that he has spent: Bermagui mortgage pay out 145,378.64 1st stage renovation costs 25,000.00 2nd stage renovation costs 30,000.00 Car lease pay out 21,000.00 Bangalow mortgage 214,484.38 Money to plaintiff 14,150.00 Gift to Trust 479,000.00 Legal costs & stamp duty 19,525.00 Living expenses 140,000.00 Legal costs 71,390.38 Lent to family members 20,102.00 Total 1,180,030.40 The defendant's evidence suggests that there is approximately $345,000 unaccounted for. Whilst the plaintiff accepts the defendant's limitations that in itself does not exclude him from adducing admissible evidence as to the disposal of the monies. The position is that the plaintiff and the Court are left in the position that she/it does not know what the defendant did with the money." 43Although the amount received might be an accurate reflection of the evidence, the amount in respect of which the first defendant gave evidence of spending is understated. The list omits the additional part of the purchase price in the new home amounting to $26,625 which was paid separately by the first defendant. It also omits a substantial number of the second renovation stage costs amounting to $87,622. These amounts total $114,247. 44The first defendant also gave evidence that he had spent substantial monies on costs of the proceedings but he did not have the details of those costs to hand. Given the nature of the proceedings, they are likely to be substantial. Given that the defendant is reduced to borrowing from his aunt and uncle and others in order to meet his expenses, I believe it is highly unlikely that he is hiding a large sum of money which is not disclosed to the Court.

Non-financial contributions 45In relation to the homemaker contributions, the plaintiff's submission is that contributions of this nature were more or less equal. The defendant did the majority of the cooking with the plaintiff assisting by peeling vegetables, making salads and cleaning up and the plaintiff doing most of the cleaning of their accommodation. I accept this submission. 46The defendant submits that he did most of the grocery shopping on a fortnightly basis. He further submits that he packed and unpacked the house contents when the parties moved from Clovelly to Bangalow and that he performed the renovation works to the property at Bangalow. He also submits that he carried out all the gardening and undertook the landscaping of the property, continuing the garden maintenance of the property after separation until about February 2010. From the date of separation, the defendant continued to pay one third of the rates, water consumption charges and electricity bills until about February 2010. 47The plaintiff conceded that the defendant undertook landscaping and some work during the two stages of renovations but disputes the extent of the work on the renovations asserted by the defendant. The plaintiff submits that the renovations occurred during 2007, a period when the defendant had a claim in the Common Law division for damages on the basis that he was incapacitated for work. The plaintiff submits that as the defendant's position in these proceedings is that he is unable to work, he cannot have it both ways. This is too simplistic an approach. 48It should be noted that apart from a period of part-time work after the birth of Jack, the plaintiff was in full-time employment for the period of the relationship whereas the defendant was not working and in receipt of workers compensation payments after the workplace accident in October 2003. He thus had time available when he was fit enough to do some work. 49The defendant submits that he supported the plaintiff while she obtained her Master of Human Resources/Industrial Relations from the University of Sydney. He also emotionally supported the plaintiff after the miscarriage of their first child and administered hormone injections to her for the IVF treatment which resulted in the birth of Jack. 50The plaintiff submits that since Jack's birth, she has made the greater contribution in the role of parent than the defendant. It is submitted that from Jack's birth to separation, the plaintiff had the primary responsibility and that since separation she has continued to have the primary responsibility. I accept this submission. 51The defendant submits that he was present at the birth of Jack and that he supported the plaintiff in hospital for five days and remained in Sydney and assisted with the care of Jack to enable the plaintiff to recuperate from the birth. I accept this submission. The defendant also submits that he has paid for Jack's expenses including food, clothing, childcare and other expenses whenever the plaintiff has given him receipts for payment. 52The plaintiff submits that the plaintiff made a significant contribution to the defendant's welfare in terms of caring for him, looking after him and providing him with emotional support as well as supporting him in pursuing his claim against his employer. 53On a number of occasions the defendant was released into the plaintiff's care after having tried to self-harm and the defendant was also admitted to hospital for treatment and for anger management. The plaintiff submits that she visited him regularly and frequently and met with his doctors. The frequency of her visits was disputed and a consideration of all the evidence suggests that if the hospital was on the way to or from work, she visited more often (but not as much as she claims) than where it was difficult to do it on the way to work. 54The defendant did not dispute that he became emotionally abusive towards the plaintiff with the police being called on at least one occasion to subdue him. He did not dispute that the plaintiff took time off work to care for him and that she used up her annual leave each year for four years and all her sick leave so that she could look after him. 55The defendant acknowledged the support the plaintiff provided to him in attending conferences with him and his lawyers, arranging representation of Queens Counsel for him, attending assessments and examinations with him as arranged by his lawyers and the insurers' lawyers. 56The defendant did not dispute the plaintiff's personal effort in contacting and liaising with the officers of CBus in regard to the early release of his superannuation benefits. 57The defendant did not dispute the evidence in the plaintiff's case that she became affected by the changes in his behaviour after the accident in that she was constantly worried and anxious about him. In my view, the care and support which the plaintiff gave the defendant was substantial as he was seriously affected by the accident. When one has regard to the homemaking contribution of the plaintiff, her non-financial contributions far exceeded those of the defendant and should be given appropriate weight in the adjustment process.

The claims of the parties 58The plaintiff initially claimed that she be declared the sole owner of the property at Bangalow and that she should receive in addition 45% of the parties' present total property minus the value of the property at Bangalow. In submissions after the hearing she reduced her claim to receiving sole ownership of the Bangalow property and a payment of $45,000 59For his part, the defendant seeks to recover from the plaintiff the excess of his renovation contributions and asks that the Bangalow property be sold and the proceeds divided equally between the parties.

Discussion 60The general principles to be applied in these cases have frequently been referred to in the Court of Appeal. Of note is what was said by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 79F through to 80A is the following: "There is nothing in s 20 of the Act of the kind found in s 75(2)(o) of the Family Law Act which requires or entitles the court to take into account as a factor alongside those referred to in par (a) and par (b) any fact or circumstance which in the opinion of the court the justice of the case requires to be taken into account. Most importantly s 20 specifies in par (a) and par (b) the matters to which the court is to have regard. As I have pointed out above, those matters would ordinarily have to be considered and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters which take their place amongst any relevant considerations. It is by having regard to those matters that the court may adjust property interest in a just and equitable manner." 61I also note the useful discussion by Bryson JA in Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360, where he said the following at [65-67]: "[65] The discretion while wide is not unlimited; the perception of what is just and equitable relates to the contributions referred to in paras (a) and (b) and not to some other or wider view of just and equitable adjustment of interests in property: see Evans v Marmont (1997) 42 NSWLR 70 ; 21 Fam LR 760 per Gleeson CJ and McLelland CJ in Eq, approving views of Mahoney JA in the majority in Wallace v Stanford (1995) 37 NSWLR 1 ; 19 Fam LR 430 and in the minority in Dwyer v Kaljo (1992) 27 NSWLR 728 ; 15 Fam LR 645 and in turn substantially approving the views of Hodgson J at first instance in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793. It should I think be understood that in Evans v Marmont Meagher JA, at NSWLR 98; Fam LR 786-7, agreed with this part of the judgment of Gleeson CJ and McLelland CJ in Eq. [66] What I understand to be established by the majority view in Evans v Marmont is to this effect: (a) The factors referred to in paras (a) and (b) of s 21 are fundamental factors influencing the judgment of the court. (b) Considering contributions and nothing else cannot lead to any view on what is just and equitable in the circumstances. (c) Factors other than contributions can have no independent bearing on what is just and equitable: they have only such relevance as they may have to the question: what is just and equitable having regard to the contributions of the parties? (d) Factors other than contributions mentioned in s 20(1)(a) and (b) may be relevant to answer the question whether the contributions of one party have been sufficiently compensated. (e) The financial circumstances of the parties are relevant to ascertain the property of the parties at the time of the hearing, to which any adjustments of interest are to be made. (f) The needs and means of the parties have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of parties; but otherwise the needs and means of the parties have no relevance, and a disproportion in their assets is not a reason why it is just and equitable to make an adjustment. (g) It would be unrealistic to attempt to evaluate contributions of the kinds referred to in s 20(1)(a) and (b) for the purpose of determining what is just and equitable having regard to those contributions in isolation from the nature and incidents of the relationship as a whole. (h) Often it may be found that contributions of the kind referred to in s 20(1)(b) would involve shared activities or reciprocal benefits which do not give rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property. [67] Notwithstanding the strength of the dissenting judgments of Mason P and Priestley JA in Evans v Marmont, the course of judicial opinion leading to Evans v Marmont means, in my view, that earlier judicial consideration, including consideration in the Court of Appeal, of the significance of contributions in s 20(1) should not be treated as authoritative; this observation extends not only to Dwyer v Kaljo but also to Green v Robinson (1995) 36 NSWLR 96 ; 18 Fam LR 594 and Theodoropoulos v Theodosiou (1995) 38 NSWLR 424 ; 19 Fam LR 632. The history of diversity of opinion, two refusals of special leave to appeal to the High Court and convening a Court of Appeal of five members gives the majority decision in Evans v Marmont a special claim to authority. In particular, expressions of opinion in Green v Robinson no longer govern the application of s 20(1). I do not find any clear majority expression of view in Green v Robinson." 62It is necessary to consider the nature of the approach that the Court should take in considering the adjustment process and whether it should be a global approach or an asset by asset approach. 63In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 523, the High Court said the following at [16]: "Although it is natural to assess financial contributions under s 79 (4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s 79(4)(a) of the Act . In this respect we agree with the comment of Nygh J in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them." 64The same considerations which apply to Family Law referred to by the High Court in Norbis v Norbis apply to decisions under the Property (Relationships) Act 1984. There are numerous cases dealing with this Act but it is useful to note the following two comments by the Court of Appeal. 65In Bilous v Mudaliar [2006] NSWCA 38 ; 65 NSWLR 615, Ipp JA outlined the general approach that should be taken in the evaluation of the parties' contributions in the following terms: "[41] In Davey v Lee (1990) 13 Fam LR 668, McLelland J said at 689: '[T]he Court is not required under s 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged 'contribution' of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.' I would endorse this approach as well as his Honour's further observation that, while the parties may value non-material contributions to the welfare of the family more highly than material contributions, these are not matters that lend themselves to detailed examination and analysis by a Court. [42] Generally, the Court has a broad discretion in determining the approach to adopt in considering what order to make under s 20(1). As Brereton J (with whom Basten JA and Hunt AJA agreed) said in Kardos v Sarbutt at [51] (relying on Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513): 'Although in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law.' Brereton J at [54] observed that: 'As [ Lenehan v Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615] shows, the principal indicator for an "asset-by-asset" analysis is discrepant identifiable contributions of the parties to different assets: in that case, the proportionate contribution of the parties to the acquisition, conservation and improvement of the matrimonial home on the one hand, and to the business assets on the other, were quite different. Such an approach will often be contra-indicated where, as here, there has been a pooling of income.' [43] If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets." 66In Separovich v Ferrao [2011] NSWCA 180, Beazley JA (with whom McColl and MacFarlan JJA agreed) stated: "[36] There are, as might be expected, a plethora of authorities as to how the Court should approach an adjustment of property under s 20. It is sufficient for the purposes of this case to refer to the following. In Manns v Kennedy [2007] NSWCA 217; DFC 95-406 Campbell JA (Santow JA and Bryson AJA agreeing) observed, at [62], that under s 20, the Court was required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: see Davey v Lee (1990) 13 Fam LR 688 at 689; Ross v Elderfield [2006] NSWCA 129 ; DFC 95-338 at [35]; Kardos v Sarbutt [2006] NSWCA 111; DFC 95-332 at [36]. [37] However, that 'holistic value judgment' is the final step in the process of arriving at an order, being the just and equitable adjustment of property, having regard to the contributions identified in s 20. Before the court can make that final determination, it is necessary to identify and value the property in respect of which it is open to the court to make an adjustment and to identify and value the contributions that are being taken into account: see Howlett v Neilson [2005] NSWCA 149 ; DFC 95-321 at [25]; Saric v Steward [2006] NSWCA 260; (2007) DFC 95 at [61]; Chanter v Catts [2005] NSWCA 411; 64 NSWLR 441 at [22]. [38] The authorities recognise that notwithstanding that the court exercises a wide discretion under s 20, a mathematical calculation of the contribution of the parties is of assistance in finding and testing conclusions as to what is just and equitable and in promoting transparency and consistency in decision-making: see Howlett v Neilson per Hodgson JA at [39]. [39] The discretionary considerations that may influence and/or determine the ultimate order made depend upon the particular circumstances of the case. As Ipp JA observed in Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 at [63]: 'Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because "of joint efforts of wage earning, homemaking and parenting, and mutual support". In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from "joint efforts of wage earning, homemaking and parenting, and mutual support".'" 67Mathematical calculations, whilst not determinative, cannot be ignored. In Manns v Kennedy [2007] NSWCA 217, Campbell JA (with whom Santow JA and Bryson AJA agreed) stated: "[64] However, the 'holistic value judgment' is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson [2005] NSWCA 149 at [25]; (2005) 33 Fam LR 420 at 407; Saric v Steward [2006] NSWCA 260 at [61]; (2007) DFC 95,401 at 78,713; Chanter v Catts [2005] NSWCA 411 at [22]; (2005) 64 NSWLR 360 at 366. [65] Further, even in carrying out that final step, 'there is no warrant for ignoring the rigour that mathematics can provide': Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop J agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411): '... while I do not think that these matters can be determined on such mathematical calculations, I think mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making.'" 68It can be seen that from a financial perspective the parties have both contributed to Bangalow and there has been no contribution by the plaintiff to the Bermagui property, which was owned by the defendant before the relationship and was sold by him after the relationship. The defendant had met all the mortgage payments on this property up until the time he paid the mortgage off. It was a rental property but at times was vacant for up to a year. 69In respect of the Bangalow property, leaving aside the question of the 2008 renovations, the parties contributed equally to this in a financial sense. Their contributions both financial and otherwise were all focused on the Bangalow property. Accordingly it seems to me that the Bermagui property can be put aside and the focus will be on my assessment of the remaining assets of the parties in approaching the matter on a global basis. 70The plaintiff seeks to justify her claim in receiving the whole of the Bangalow property and $45,000 upon her non-financial contributions which included her support and help for the defendant in the course of his illness throughout nearly all of the relationship. 71On the financial side, there is the large difference in the parties' salaries. The plaintiff brought to the relationship $220,000 more than the defendant in this regard. There is no suggestion in this case that funds were spent on matters separate to their joint endeavours. There was also the defendant's contribution of his inheritance of $103,378.90. 72Given that I accept that Bangalow is owned equally this takes account of the defendant's use of his funds received in 2008 of $232,500 to acquire the interest. He also used these funds to pay out the mortgage on Bermagui of $145,378 which I put to one side. The total of this is $377,878. In 2008 he received $518,098 and thus he also contributed about $140,220 of these funds to their joint endeavours and to the payment of mortgage instalments on Bermagui for 18 months when it was vacant of about $12,000. The amount for their joint endeavours is thus $128,220. 73One thus has the plaintiff on the salary side contributing $220,000 more, and the defendant from his receipts contributing $230,000, with Bangalow owned equally. 74Any further adjustment of this interest in the only relevant property will require a consideration of the non-financial contributions and the parties' superannuation resources. The first defendant's superannuation has been used by him in the parties joint endeavours and the plaintiff still retains her superannuation resource of $154,794. 75Bangalow has lost value and is now worth $610,000. Bearing in mind all the relevant matters, it seems to me that an appropriate adjustment is for the Bangalow property to be held as to three-quarters for the plaintiff and to one quarter for the first defendant. It may be that the plaintiff would seek to buy the defendant's one quarter interest and the orders should provide for this contingency

Costs 76Section 98(1) of the Civil Procedure Act 2005 states: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." 77Rule 42.1 of the Uniform Civil Procedure Rules 2005 states: "42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 78The decisions of Dunstan v Rickwood (No 2) [2007] NSWCA 266 and Baker v Towle [2008] NSWCA 73 provide authority for the proposition that, subject to UCPR 42.30(2), the discretion referred to in s 98(1)(a) should not be enunciated in terms that would confine the discretion and "constitute a return to the 'arterial hardening' [that was] abandoned with the enactment of costs provisions such as s 98" (per McColl JA at [38], Dunstan v Rickwood (No 2), adopting the principles established in Oshlack v Richmond River Council [1998] HCA 11 at [38]. 79As a consequence, the issue of costs should not be approached from the starting point that each party should pay their own costs (as previously decided by Brereton J in Kardos v Sarbutt (No 2) [2006] NSWCA 206 [20] to [35]), but the issue should to be resolved with regard to the "event" from which a party should become liable for costs. The determination of what constitutes an "event" requires an evaluation of the outcome of the proceedings, the positions adopted by the parties during negotiations and their relative success in the matter. Kardos v Sarbutt (No 2) [2006] NSWCA 206 and Baker v Towle [2008] NSWCA 73 are authorities in support of this proposition. 80In Baker v Towle, Beazley JA held that when deciding a question of costs and the exercise of the court's discretion, regard must be had to the relevant facts and circumstances of the case, "[22] However, on the approach adopted by the Court on the leave application in Vollmer v Hauber-Davidson [2005] NSWCA 237, 'the event' may be identified in a variety of ways in the one case. It would be odd and, indeed, unfortunate, if the identification of 'the event' in one way resulted in an order for costs, on the basis of 'costs follow the event' whereas a different, but equally appropriate identification of 'the event' meant a different application of the rules. The oddness in there being different possible applications of the rule (in this respect I am not referring to the exercise of the discretion under the rule) depending on the identification of 'the event' raises in my mind the question whether this is the correct approach. In most cases, the costs order will almost invariably depend upon the exercise of the discretion. [23] The real question is what is the appropriate order for costs. An obvious starting point is the pleadings. However, the identification of the issues in the pleadings is likely to be only one of several considerations relevant to the costs order that ought to be made. The considerations may include whether any offers of settlement have been made and if so what those offers were. The discretionary considerations may also include the manner in which the proceedings are conducted. These are but 2 examples. There may be a whole range of relevant circumstances depending upon the particular case. [24] I would therefore prefer to treat the identification of the issues that arise on the pleadings as part of the consideration of matters relevant to the Court's discretion. In my opinion, that gives proper effect to r 42.1 and is consistent with the authorities and, in particular, the statement of McLelland J in Parker v McNair to which the Court referred in Vollmer (see [8] of the judgment on the leave application). [25] The difference between the approach that I prefer and the approach of Basten JA is probably more apparent than real. It will be apparent from what I have said, that where an order for adjustment is made, the costs order made will rarely, if ever, depend simply upon which party commenced proceedings. The question of costs needs to assessed in accordance with the facts and circumstances in each case and as the analysis undertaken by the Court in Vollmer indicates, no principles or general guidelines have emerged in cases under the Property (Relationships) Act." 81The relevant excerpt from McLelland J's decision in Parker v McNair (1990) DFC 95-087 at [8] is as follows: "In this kind of case where the discretionary powers of the Court are invoked it is important on the question of costs, in my view, to see how reasonable or otherwise the parties have been in limiting issues for litigation and in making offers of settlement, and this is the kind of case in which parties would be wise, if they wish to make an offer of settlement, to adopt the Calderbank form of letter ... or to make an open offer, because it is only in the light of that sort of information that the Court can really be properly placed to consider whether the litigation was necessary." 82Basten JA's approach in Baker v Towle highlights the jurisdictional limitation of r 42.1 was as follows: "[82] A different approach will apply where the Court orders an adjustment of a value or amount not exceeding the jurisdictional limit of a Local Court sitting in its General Division: UCPR r 42.30. In that circumstance, the general rule is that there should be no order as to costs. However, that rule was not engaged in the present case, the jurisdictional limit of the Local Court at the relevant time being $60,000 and the value of the transfer now required by order of this Court being approximately $300,000 ... Because UCPR r 42.30 applies in carefully limited circumstances, the starting point for the exercise of discretion in relation to costs incurred in proceedings under the Act must otherwise be r 42.1, as this Court held in Dunstan v Rickwood (No 2) [2007] NSWCA 266 (McColl JA, Beazley and Ipp JJA agreeing): see also Hayes v Marquis [2008] NSWCA 10 at [145] (McColl JA). To the extent that a contrary approach was proposed in Kardos v Sarbutt [No 2] [2006] NSWCA 206 at [35]. I agree that it should not be followed: see Dunstan at [35]-[37]. However, the dictum in Kardos to the effect that a 'starting position' was that the Court should make no order as to costs was restricted to the case where it could not be said that either party had been 'wholly or substantially successful' or had bettered his or her offer of compromise. The qualifications to this proffered 'starting position' should properly be understood as being in conformity with r 42.1, in circumstances where the appropriate characterisation of the outcome of the proceedings ('the event' referred to in the rule) may involve elements not common to other forms of litigation. [83] An application under s 20 for adjustments to interests in assets should involve a specific claim and a defence which should indicate the degree (if any) to which the defendant is willing to concede the adjustment sought. The pleadings will then identify the scope of the dispute. The next question is whether any degree of success on the part of the plaintiff should be sufficient to justify an order for payment of her costs in full, or whether the costs order should in some sense be proportionate to the degree of success. In such a case, the 'event' may be identified with greater or less precision by reference to the extent of the adjustment ordered." 83Thus the identification of the "event" and any exercise of discretion by the court with regard to costs should be made with a consideration of the factors identified at [83] by Basten JA and with regard to the facts and circumstances in the case. 84I have already referred in paragraph ?? to the ambit of the plaintiff's claim which was made in her statement of claim. The first defendant in his defence sought one half of Bangalow and a payment of $87,149.50 plus interest. The plaintiff had a far higher starting point at the commencement of the proceedings. She maintained this throughout the hearing until final submissions after evidence. Her then claim was for her to have the whole of the Bangalow and $45,000. The first defendant's claim was to have half of Bangalow and $42,000. The parties were then almost the same distance apart from the result by the time of submissions. 85This indicates the plaintiff taking a far higher position than the defendant from the result for almost all of the proceedings. In these circumstances, there should be an order for costs in the defendant's favour. The amount of that order should reflect that the defendant still maintained a higher claim than he ultimately obtained. It would be appropriate for the plaintiff to pay three-quarters of the defendant's costs on the ordinary basis. The plaintiff should pay the 2nd and 3rd defendants costs of the proceedings against them given her abandonment of the claim.

Orders 86I make the following orders: (1)By way of adjustment of the parties interests, declare that the Bangalow property in the name of the plaintiff be held as to a three-quarter share for the plaintiff and as to a one-quarter share for the first defendant as tenants in common. (2)A declaration that each party is the sole legal and beneficial owner of all other property, real and personal in his or her possession or control. (3)The plaintiff has the right to purchase the first defendant's one-quarter interest in the Bangalow property by a payment of $152,500, such payment to be made within three months of today's date. (4) In the event that the plaintiff does not purchase the first defendant's interest within three months, the real estate be sold forthwith by private treaty, and the proceeds be expended as follows in the following order and priority: (a)All costs and expenses incurred on sale that may be outstanding, including but not limited to legal costs and disbursements, agents commission and expenses; (b)The balance then remaining is to be paid as to one quarter to the first defendant and the balance to the plaintiff. (5)Dismiss the proceedings against the second and third defendants. (6)The plaintiff to pay three quarters of the first defendant's costs of the proceedings and all of the second and third defendants' costs of the proceedings on the ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2013

(1987) 11 Fam LR 785

(1990) 13 Fam LR 668

(1987) 11 Fam LR 615

(1990) 13 Fam LR 688

(2005) 33 Fam LR 420

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